93 Decision Citation: BVA 93-20193
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-20 639 ) DATE
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THE ISSUE
Whether new and material evidence has been submitted to reopen a
claim of entitlement to service connection for a right knee
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Appellant
ATTORNEY FOR THE BOARD
V. Powell, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals (hereinafter
the Board) on appeal from a rating decision of October 1991 from the
Houston, Texas, Regional Office (hereinafter RO). The veteran had
active service from December 1964 to December 1965. A notice of
disagreement was received in October 1991. A statement of the case
was issued in January 1992. A substantive appeal was received in
January 1992. The veteran is represented by Disabled American
Veterans. This service organization submitted additional written
argument in January 1992. A personal hearing was held before a
hearing officer at the RO in May 1992. A supplemental statement of
the case was issued in June 1992. The veteran's service
representative submitted additional written argument in February
1993. The case was received and docketed at the Board in November
1992. The case is now ready for appellate review.
REMAND
The veteran contends that his right knee injury was incurred during
active service. He maintains that there was a misunderstanding on
the part of the inservice physicians concerning the extent or
significance of any preservice knee trauma. The Board would note
that knee pathology or a history of trauma was not noted on the
enlistment examination, and there were indications of knee trauma
during service. It is further maintained, in effect, that new and
material evidence sufficient to reopen his claim has been submitted
and that the evidence warrants favorable action on his claim.
In reviewing the record, this panel of the Board notes that in
December 1970, service connection for a right knee injury was denied.
It was reasoned that aggravation of the veteran's right knee
condition was not shown, as any advancement in symptoms was due to
natural progression. The veteran was notified of this decision in
December 1970, and an appeal was not perfected during the following
year. The rating action became final. Prior to December 1970 the
evidence did not include the veteran's hearing testimony or a
statement from the veteran's mother, both indicating that the veteran
never significantly injured his right knee prior to service. We
would note that evidence developed and submitted in association with
the veteran's effort to reopen his claim to establish entitlement to
service connection for a right knee disability includes references to
treatment by physicians whose clinical findings are not of record.
During the recently conducted personal hearing, the veteran stated
that he had been receiving routine and almost constant treatment for
his knee since service.
The United States Court of Veterans' Appeals has set forth doctrine
to the effect that evidence is assumed to be credible for purposes of
determining whether it is new and material. Accordingly, it is our
view that further development of the record is appropriate in view of
our finding that the veteran's claim is reopened as the new evidence
is also found to be material.
Accordingly, the case is being REMANDED for the following action:
Appropriate arrangements should be made to
obtain from the veteran a list of the physicians
who had treated him for his knee problems since
service, their addresses, and the approximate
time frames of treatment. The veteran should
also furnish information regarding his family
physician prior to service. The RO should then
initiate efforts to secure treatment records
from these physicians. This material should be
incorporated into the claims file.
When the above development has been completed, the case should again
be reviewed by the originating agency. If the decision remains
adverse to the veteran, he and his representative should be furnished
a Supplemental Statement of the Case and afforded a reasonable period
to respond. The statement of the case (supplemental) should reflect
that consideration has been extended to the provisions concerning the
"presumption of soundness" afforded upon entrance into service,
absent contrary indication on the entrance examination. Thereafter,
subject to current appellate procedures, the case should be returned
to the Board for further appellate consideration, if appropriate.
The veteran need take no action unless he is further informed. The
purpose of this REMAND is to obtain additional evidence and no
inference should be drawn regarding the final disposition of the
claim.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
IRVIN H. PEISER, M.D.
JEFF MARTIN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel. The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Veterans Appeals. This remand is in the nature of a preliminary
order and does not constitute a decision of the board on the merits
of your appeal. 38 C.F.R. § 20.1100(b)(1992).